Labour Court Database __________________________________________________________________________________ File Number: CD89130 Case Number: LCR12357 Section / Act: S20(1) Parties: DUBLIN CARGO HANDLING LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS UNION |
Claim by the Union on behalf of a docker concerning his suspension.
Recommendation:
5. The Court notes that the procedures of the Comprehensive
Agreement provide that the parties will be bound by the
Arbitrator's decision unless that decision is a fundamental breach
of the letter or spirit of the Agreement. As no such breach, in
the Court's opinion, occurred in this case, the Court recommends
that the claimant accepts the Arbitrator's decision.
Division: Mr Fitzgerald Mr Shiel Mr Walsh
Text of Document__________________________________________________________________
CD89130 RECOMMENDATION NO. LCR12357
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 20(1)
PARTIES: DUBLIN CARGO HANDLING LIMITED
and
IRISH TRANSPORT AND GENERAL WORKERS UNION
SUBJECT:
1. Claim by the Union on behalf of a docker concerning his
suspension.
BACKGROUND:
2. The worker concerned is employed as a docker by the Company
and has been trained to operate cranes, which he does from time to
time. On 9th August, 1988, he was operating as a craneman
unloading cargo from the fore end of a ships hatch. At
approximately 3 p.m. he was requested, by his foreman, to move to
the aft end of the ship. He refused to carry out this instruction
on the basis that he was concerned about hitting a silo which
jutted out along the quay. He indicated that he was not prepared
to move aft until a couple of hours had passed and the water level
changed, by which time there would be no danger of a collision
with the silo. A senior foreman was called and repeated the
instruction. The worker again refused on safety grounds. The
Personnel Manager then instructed him to leave the crane, which he
did. A disciplinary hearing took place on 17th August, 1988, in
accordance with agreed procedures as per the Comprehensive
Agreement. The result of the hearing was a two week suspension of
the worker. He appealed the decision to suspend him but it was
upheld on appeal. The issue was then referred to an Arbitrator in
accordance with the agreed procedure. The Arbitrator, whose
decision is binding, felt that the Company was correct in taking
disciplinary action but felt that two weeks suspension was
excessive. He felt the suspension should be reduced to three
days. This decision was unacceptable to the worker and on 14th
February, 1989, it was referred to the Labour Court under Section
20(1) of the Industrial Relations Act, 1969. The Court
investigated the matter on 15th March, 1989.
UNION'S ARGUMENTS:
3. 1. The worker refused to carry out the foremans instruction
on safety grounds. He believed that the clearance at the
particular section of the quay was too small. As an
experienced craneman, he felt there was a risk involved. It
should be noted that whilst working this section of the quay
in the past, the worker has hit the silo. This incident was
reported but the Company denies any knowledge of it.
2. The worker believes that the only reason he was asked to
work the aft end was because the gang wanted to and were not
prepared to have the craneman tell them where to go.
3. The craneman did not not refuse to work the ship. He was
prepared to work four fifths of it and do the remainder when
the tide lifted and the clearance was greater. There have
been a number of incidents where cranemen have refused to work
because of safety and they have not been disciplined.
4. The imposition of a three day suspension will actually
mean the loss of a further 3 days by him, due to the loss of
his attendance bonus.
5. The issue of safety has been the subject of a number of
meetings relating to incidents concerning workers in the
recent past. The Union has advised the Company on a number of
occasions that it questioned the Company's absolute priority
to safety and indeed the lack of a safety statement. Last
year, in fact, it was necessary for the Union's Safety Advisor
to attend the unloading of a ship to investigate the
operation.
6. In many of the Company's operating cranes in the port area
the decision of the craneman regarding the safety of working
would be given precedence following consultation with the
foreman. It is generally accepted that the crane operator
would be the best judge of the situation. The Company does
not appear to take this approach in this case.
7. The Company are in breach of the Comprehensive Agreement,
specifically clause 35.1, (i) and (iii) which read:-
(i) To ensure the efficient running of the Company whilst
maintaining the well-being of the workforce.
(iii) To ensure that consistent standards are applied in all
disciplinary cases.
COMPANY'S ARGUMENTS:
4. 1. The Comprehensive Agreement specifies that "neither side
will appeal the Arbitrator's decision except on the grounds
that his decision is a fundamental breach of the letter or
spirit of the Agreement." Despite requests from the Company
the Union was unable to show that the Arbitrator's decision
was in breach of the Agreement and, indeed, the Union never
stated that it was.
2. The question of discipline is of fundamental importance in
the running of any business. Without a code of discipline
business would not survive. It is difficult at the best of
times to maintain normal discipline in the docklands but if
established procedures are undermined this would do untold
damage not alone to the confidence of supervisors but also to
the rank and file docker who wants to do his job without
interference or intimidation.
3. It is in deference to the Court that the Company is
represented at the Court hearing. The Company prudently and
judiciously followed agreed procedures in this case and
investigated the relevant information.
4. An independent Arbitrator has adjudicated on the matter
and his decision is binding on both parties. There is no
further recourse of appeal in the circumstances. For these
reasons the Company believes this case should not be before
the Court.
RECOMMENDATION:
5. The Court notes that the procedures of the Comprehensive
Agreement provide that the parties will be bound by the
Arbitrator's decision unless that decision is a fundamental breach
of the letter or spirit of the Agreement. As no such breach, in
the Court's opinion, occurred in this case, the Court recommends
that the claimant accepts the Arbitrator's decision.
~
Signed on behalf of the Labour Court
Nicholas Fitzgerald
_______________________
18th April, 1989. Deputy Chairman
B.O'N/J.C.